Minister for Indigenous Affairs v Catanach & Ors [2001] WASC 268 (4 October 2001)

Last Updated: 5 October 2001

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION : MINISTER FOR INDIGENOUS AFFAIRS -v- CATANACH & ORS [2001] WASC 268

CORAM : PULLIN J

HEARD : 28 SEPTEMBER 2001

DELIVERED : 4 OCTOBER 2001

FILE NO/S : CIV 2485 of 2001

BETWEEN : MINISTER FOR INDIGENOUS AFFAIRS
Plaintiff

AND

BLAIR PETER CATANACH
First Defendant

JACQUELINE LULA CATANACH
Second Defendant

WILLIAM JAMES SUTTON
Third Defendant

RUTH ANNA SUTTON
Fourth Defendant

HAROLD NORMAN TRACEY
Fifth Defendant




Catchwords:
Aborigines - Aboriginal Heritage Act 1972, s 18

Injunctions - Interlocutory injunction - Breach of criminal law
Legislation:
Aboriginal Heritage Act 1972, s 18
Result:
Application for interlocutory injunction refused
Category: A

Representation:
Counsel:
Plaintiff : Mr G T W Tannin & Mr R Bathurst
First Defendant : Mr P L Wittkuhn
Second Defendant : Mr P L Wittkuhn
Third Defendant : Mr P L Wittkuhn
Fourth Defendant : Mr P L Wittkuhn
Fifth Defendant : Mr P L Wittkuhn
Solicitors:
Plaintiff : State Crown Solicitor
First Defendant : McLeod & Co
Second Defendant : McLeod & Co
Third Defendant : McLeod & Co
Fourth Defendant : McLeod & Co
Fifth Defendant : McLeod & Co



Case(s) referred to in judgment(s):


Case(s) also cited:

Bullock v FFTSA (No 1) [1985] FCA 19; (1985) 5 FCR 464
R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 420
Rhyl Urban District Council v Rhyl Amusements Ltd [1959] 1 WLR 465

1 PULLIN J: This is an application by the Minister for an interlocutory injunction against the defendants restraining them from excavating, destroying, damaging or in any way altering the land on Lots 76 and 77, Dampier Terrace, Broome without first obtaining the consent of the Minister under s 18 of the Aboriginal Heritage Act 1972. At the trial, the only relief to be claimed will be a permanent injunction in the same terms. The Minister therefore has to establish that there is a serious question to be tried. In other words, there is a real possibility that a permanent injunction will be granted.

2 The facts are not in dispute, although what the facts should or should not have revealed to the plaintiff or the plaintiff''s departmental officers or to others, is a matter of dispute. I will indicate where that dispute arises.

3 The case concerns a piece of land in Chinatown in Broome. Chinatown is the central business district of Broome.

4 The two lots referred to above were formerly part of Lot 73. Lot 73 is approximately 1,300 square metres in size. Lot 73 was originally the subject of a Crown grant in fee simple in 1920. In the 1950s, a two-storey house stood on the lot but has since been demolished. In 1999, Brandol Pty Ltd and Mr Graham Cerini acquired the land as tenants in common. On 10 January 2000, the West Australian Planning Commission granted approval to subdivide Lot 73 into three lots. Those three lots have now been created and are known as Lots 76, 76 and 77.

5 In May 1999, Mr Cerini arranged for the erection of a sign on Lot 73 which read:

"A planning application to build an office with accommodation on this site will be submitted to the Shire of Broome."

6 The notice directed that any comments be forwarded to the developer at an address in West Perth.

7 In early 2000, Brandol Pty Ltd and the third defendant entered into a contract whereby Mr Sutton purchased Brandol's half share as tenant in common in respect of Lot 73. A condition of that transaction was that there should first be in place a consent pursuant to s 18 of the Aboriginal Heritage Act 1972.

8 Discussions then took place with certain representatives of the Kimberley Land Council ("KLC"). By letter dated 22 February 2000, Mr Cerini informed the KLC that the building to be constructed would be "commercial and residential in accordance with Chinatown guidelines and zoning". The KLC sought further details of the "commercial use" in letters dated 29 February 2000 and 7 March 2000.

9 On 31 March 2000, Mr Cerini wrote a letter directed to the Aboriginal Affairs Department attaching a signed application notice under s 18 of the Aboriginal Heritage Act. He attached "photostat copies of documentation and plans" in support of the application and stated that he understood that the site was "a significant Aboriginal heritage site being Undanda registered No 12783".

10 His letter continued:

"I intend to prepare the site for development which also involves a retaining wall and driveway for access, also a shed for storage and fencing for public safety."

One of the documents accompanying the letter was headed "Notice under Section 18 of the Aboriginal Heritage Act 1972". The notice was accompanied by Aboriginal heritage reports identifying the land as being Lot 73. The notice stated:

"We require to use the said land for the purpose described in Schedule 2 which purpose unless consent under s 18 is given will be likely to result in a breach of s 17 of the said Act."

11 Schedule 2 was headed "The Purpose" and it contained a list of words following the part of the form which read "Please state clearly the use involved, the work to be done and the areas of land to be affected by the development". The words were:

" Total site clearing

Shed

Retaining wall

Driveway

Boundary fence

Sewer and water lines

Crossover."

For the sake of brevity, I will call this the "Shed" development. Accompanying the letter and the notice that I referred to were other documents, in all the bundle totalling 80 pages. Included within the bundle were the text of the sign erected on the land in May 1999 which I have set out above, and the two letters from the KLC of 29 February 2000 and 7 March 2000 which I have referred to above.

12 Mr Cerini says that he had a discussion with Mr Hayden Lowe, the Chief Executive Officer of the Aboriginal Affairs Department. Mr Lowe informed Mr Cerini that he was going to meet with the Minister, Dr Kim Hames, shortly and that a s 18 consent was to be issued. Mr Cerini said that he was told by Mr Lowe that he would "not need to go back to the Minister for any further consent for any further development on the site". He essentially told Mr Cerini that his inquiries indicated that the site had no Aboriginal heritage significance. He said that he was unable to find any evidence that would support the withholding of consent.

13 In fact, the matter had gone before the Aboriginal Cultural Material Committee ("ACMC"), as contemplated by the Act, which resolved to recommend to the Minister that, provided written evidence was submitted to the Registrar that Mr Cerini had consulted with certain named persons, consent would be granted to him to use a portion of Aboriginal site No 12793 for "site clearing and construction for various structures including a shed, retaining wall, driveway, fence and sewer/water lines".

14 This recommendation was considered by Mr Lowe, who passed it on to the Minister with a briefing note which stated:

"Contrary to the recommendation of the ACMC I am of the view that you should grant unconditional consent to Mr Cerini for the proposed use outlined in his s 18 application."

He gave reasons for that recommendation, but it is not necessary for me to set them out.

15 The Minister then wrote a letter dated 22 August 2000, which read:

"I refer to your notice under s 18 of the Aboriginal Heritage Act 1972 (AHA) dated 4th April 2000.

In accordance with my powers under s 18(3) of the AHA, I hereby grant you consent to use the land on Lot 74 (sic), Dampier Terrace, Broome (being a portion of the area of site 12793) for the purpose detailed in your s 18 notice dated 4th April 2000."

16 Following receipt of the s 18 consent, Mr Cerini says that he contacted Mr Lowe again as he noted that the s 18 consent did not in terms state that no further s 18 consent would be required for the subsequent development of Lot 73. Mr Lowe said that he would prepare another letter which clarified that the site had been given a full clearance and that Mr Cerini would not have to go back for an application in relation to any further development. Mr Lowe then signed the letter on behalf of the Aboriginal Affairs Department dated 24 August 2000, which read:

"To clarify your inquiry if you need to make changes to your project plans, please note that you do not need to make another s 18 application. Your current s 18 approval from the Minister will cover these."

17 Following the grant of the s 18 consent, Mr Cerini says he advised Mr Sutton of the consent and that on 24 August 2000 settlement occurred in respect of Lot 73, whereby Brandol Pty Ltd transferred its interest as tenant in common in respect of Lot 73 to Mr Sutton and his wife (the fourth defendant) and the three sublots were immediately transferred as follows:

Lot 75: to Graham Victor Cerini

Lot 76: to the first and second defendants

Lot 77: to the third and fourth defendants."

18 On 10 August 2000, the third and fourth defendants entered into a contract with the fifth defendant, Mr Tracey, for the construction of an office and accommodation development on Lot 77. One of the special conditions in the contract was that the owner was required to provide proof of "relevant s 18 to builder prior to works commencing or alternatively provide documentation indemnifying the builder from any action resulting from non-compliance with a s 18 in place" (sic).

19 On 5 September 2001, Taylor Burrell wrote to the Registrar, Aboriginal Heritage Culture and Business Services, referring to the fact that a s 18 clearance had been granted in relation to Lot 73, referring to the letter of clarification provided to Mr Cerini by Mr Lowe dated 24 August 2000 and attaching a copy of the development plan that had been approved by council. This revealed for the first time to the Minister's department that a development was proposed involving the construction of a building to house residential and commercial tenants; a development which was completely different from the "Shed" development which had been made the subject of the s 18 notice which had been provided to the former Minister.

20 When the present Minister realised that this development was proposed for the site, the departmental officers wrote letters explaining that the Minister considered that the consent did not cover the proposed development. The third and fourth defendants are proposing a similar development on Lot 76.

21 The Minister takes the view, and made it clear to the defendants, that the proposed work is not covered by the consent given by the former Minister. The defendants disagreed. Litigation was then threatened and, on 25 September 2001, the parties came before Wheeler J and the defendants gave an undertaking not to excavate, destroy, damage or in any way alter the land on Lots 76 and 77 until the hearing of this application.

Aboriginal site

22 Lot 73, and indeed the whole of Chinatown, lies within Undanda. This is an "Aboriginal site" within the meaning of the Aboriginal Heritage Act. Ms Cattermole, the principal legal officer of the Department of Indigenous Affairs, explains that Undanda has been assessed by the ACMC under s 28 of the Act to be a site of significance pursuant to s 5(a), (b) and (c) and s 39(2)(a), (b) and (c) of the Act. Undanda is listed as Site 12793 on the permanent register of Aboriginal sites established under s 38 of the Act. The site is designated as a "closed" site under DIA's "sites register system, policy and procedures". This means that the departmental site file cannot generally be accessed without the prior consent of the Aboriginal persons who provide the information (there are exceptions for certain departmental staff). Ns Cattermole says that she is advised by the Registrar that Undanda is of mythological importance to Aboriginal people in the Kimberley region, including as part of a "song cycle" and has also been used as a camp site for Aboriginal people for what could possibly be thousands of years. Undanda is also a significant archaeological site where "kitchen middens" are evident. "Kitchen middens" are mounds or scatters of shell particle that are the remnants of places where people ate meals in the past. There is no evidence that kitchen middens are found on Lot 73 or the new lots, Lots 76 and 77. The minutes of one of the meetings of the ACMC reads:

"Discussion revealed that the location may be the site of a song cycle and a men's only business area. The West Kimberley representive drew members' attention to the fact that the people with the knowledge of the song cycle were living in the nearby sand hills and they had previously lived in the property owned by Mr Du Bray."

Legal framework to the dispute

23 The Aboriginal Heritage Act 1972 is an Act "to make provision for the preservation on behalf of the community of places and objects customarily used by or traditional to the Aboriginal inhabitants of Australia or their descendants or associated therewith and for other purposes incidental thereto".

24 "Aboriginal site" means a place to which the Act applies by the operation of s 5. Section 5 of the Act reads:

"This Act applies to -

(a) any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;

(b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;

(c) any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State;

(d) any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed."

25 Section 10 of the Act states it is the duty of the Minister to ensure that, so far as is reasonably practicable, all places in Western Australia that are of traditional or current sacred ritual or ceremonial significance to persons of Aboriginal descent should be recorded on behalf of the community.

26 Section 17 provides:

"A person who -

(a) excavates, destroys, damages, conceals or in any way alters any Aboriginal site ... commits an offence unless he is acting with the authorisation of the Registrar under s 16 or the consent of the Minister under s 18."

27 Section 18 provides for the owner of any land to give to the ACMC notice in writing "that he requires to use the land for a purpose which unless the Minister gives his consent under this section would be likely to result in a breach of s 17 in respect of any Aboriginal site that might be on the land". The committee then has to form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of such site and submit the notice to the Minister with a recommendation in writing about whether the Minister should consent to the use of the land for that purpose. The Minister is obliged to consider the recommendation and he shall then either consent "to the use of the land the subject of the notice ... for the purpose required ... or wholly decline to consent ...". He is then obliged to forthwith inform the owner in writing of his decision.

28 Section 18(8) reads:

"Where consent has been given under this section to a person to use any land for a particular purpose nothing done by or on behalf of that person pursuant to and in accordance with any conditions attached to, the consent constitutes an offence against this Act."

Does comment under s 18 provide a "blanket clearance"?

29 The dispute has developed because the present Minister's departmental head held the view that once consent had been given to carry out work on the land, this amounted to a general clearance in relation to all and any work which might thereafter be carried out. The defendants agree with this view. The present Minister does not agree. He contends that the consent only relates to the "Shed" development.

30 Not only did the Chief Executive Officer hold the view that consent once given permitted different work to be carried out, but he also also wrote his letter of 24 August 2000 to Mr Cerini expressing this view and later, when he was no longer in the department when this dispute was brewing, he expressed the view that there was a "blanket clearance" on the site and confirmed that this was his view of the matter in an e-mail dated 27 September 2001 directed to Mr Sutton.

31 The first issue then is whether a consent, once given, does provide a "blanket clearance" in relation to all or any work on the site. In my view, it does not. Section 18(2) of the Aboriginal Heritage Act makes it clear that the owner of land is to give notice that he requires to use the land "for the purpose" which (absent consent) would result in a breach of s 17.

32 Section 18(3) requires the Minister to either decline to consent or to consent to the use of the land "for the purpose required".

33 Section 18(8) states that where consent has been given to a person for a "particular purpose", then nothing done by or on behalf of the person "pursuant to" the consent constitutes an offence.

34 In my view, those provisions make it clear that the consent only applies to the particular purpose. They do not provide for a "blanket clearance" to do any of the things listed in s 17.

35 Even if a consent did have effect as a "blanket clearance", it would only avail the person to whom the consent was given. That being so, any consent given to Mr Cerini or Brandol Pty Ltd would not avail any of the defendants. The work they are carrying out, or which is being carried out on their behalf, is not work carried out by Mr Cerini or Brandol Pty Ltd, or on Mr Cerini's or Brandol Pty Ltd's behalf.

36 Counsel for the defendants submitted that the consent given by the Minister "ran with the land" and he cited Hanily v Minister of Local Government and Planning [1952] 2 QB 444, Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 at 215 and Ocean View Plaza Pty Ltd v WAPC [1999] WATPAT 5 as authority for that proposition. Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270 may also be added to that list. Those cases concerned planning permits or consents. The cases must ultimately turn on the construction of the provisions under question in each case. The legislation referred to in those cases permits the application for planning permission to be made by persons other than the owner of the land, which permission, once granted, can be relied upon by a developer or subsequent owner even though they were not the applicants for permission.

37 The Aboriginal Heritage Act provisions are quite different. A s 18 consent only gives the owner of land who is the applicant (and persons who carry out work on his or her behalf) protection from prosecution under s 17. This conclusion is fortified by looking at the legislative history of s 18.

38 When the Aboriginal Heritage Act 1972 ("Act") was originally enacted, the owner of any land on which an Aboriginal site existed could apply to the Trustees of the Museum, appointed under the Museum Act 1969, for permission to use the land for a purpose which would be likely to have a deleterious effect on the preservation of the site. Section 18(6) of the Act then provided:

"(6) Where any land comprised in an Aboriginal site is the subject of a consent given under this section that site, or so much of it as is the subject of that consent, shall be deemed to be excluded from the provisions of this Act."

There was no equivalent of s 18(8) at that time.

39 The original section 18 of the Act was repealed by the Aboriginal Heritage Amendment Act (No 2) 1980. Under the new section 18, the consent of the Minister was required if an owner proposed to excavate, destroy, damage, conceal or in any way alter an Aboriginal site. Section 18(8), which is still in the same form today, was introduced.

40 Although I am informed by the plaintiff that the relevant Hansard does not provide any guidance on the question, it may reasonably be presumed that the change in wording from the previous section 18(6), where consent removed land from the operation of the Act, to the present section 18(8), where consent is personal to a particular person, was meant to effect a change in the way consents under the Act operate.

41 As a matter of statutory construction, the consent under section 18(8) of the Act, which gives a person and others acting on that person's behalf a right to do what would otherwise be a criminal act, does not provide a "blanket clearance" and nor does the consent "run with the land" to benefit all who subsequently own the land.

42 Counsel for the defendants also contended that because the 80 page bundle of documents accompanying the notice under s 18 contained a document disclosing the content of the sign erected on the land in May 1999 and the two letters from the KLC dated 29 February 2000 and 7 March 2000, that the purpose which was consented to under s 18 was the "commercial and residential" development now proposed. I reject that contention. The references to an unparticularised "commercial and residential" development were merely passing references. The clearly stated purpose was that set out in Sch 2 of the "Notice under Section 18 of the Aboriginal Heritage Act 1972", namely, a development consisting of site clearing and construction of a Shed (which a plan showed to be 6075 x 6890 mm in size), a retaining wall, a driveway, boundary fence, sewer and water lines and a crossover". The s 18 consent related to that "Shed" development and no other.

43 The defendants also submitted that the representation by Mr Lowe about the effect of the Minister's consent, and in particular Mr Lowe's letter of 24 August 2000, gave rise to an estoppel; in short, that the present Minister is estopped from denying that the work to be carried out is covered by the former Minister's consent in his letter of 22 August 2000. In my view, the opinion expressed by Mr Lowe about the legal effect of the Minister's consent cannot give rise to an estoppel. See Formosa v Secretary, Department of Social Security [1988] FCA 291; (1993) 46 FCR 117, at 125. The representation was about the rights flowing from the Minister's decision rather than a representation about the exercise of a discretion. As was said in the Formosa case, at 125, the authority of the decision maker cannot be extended by estoppel beyond that given by the statute.

Factors militating for and against an injunction

44 There are a number of factors which militate for and against the grant of an injunction.

45 First, the Australian community and its courts now recognise the importance of the culture and traditions of Aboriginal people. The Aboriginal Heritage Act is an Act by which the Western Australian Parliament has moved to protect and preserve Aboriginal sites and objects. In particular, the Act provides, in relation to Aboriginal sites, that it is an offence to excavate, destroy, damage, conceal or alter an Aboriginal site without the consent of the Minister. Aboriginal sites are not of value only to Aboriginal people, but also to the Australian community as a whole, so that in proceedings for an injunction the contravention of s 17 can be regarded as the violation of a "public right" and restrained at the suit of the Attorney General. As to the principles applicable in proceedings to prevent the violation of a "public right": see Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3rd edn, par 2135.

46 Secondly, I consider that the Court has jurisdiction to grant an injunction even though the plaintiff is the Minister and not the Attorney General - see Bridgetown/Greenbushes Friends of the Forest Inc & Anor v Executive Director of the Department of Conservation and Land Management & Ors (1997) 18 WAR 126, at 141 and 181.

47 Thirdly, in my opinion, if work is performed on site to construct the residential office buildings, this will amount to the alteration of the Aboriginal site.

48 They are all points favouring the grant of an injunction.

49 On the other hand, I note that the defendants have been under the impression (fostered by the former Minister's CEO) that the consent given by the former Minister under s 18 allows the proposed building work to be performed without contravening s 17.

50 Mr Sutton, the third defendant, agreed to purchase Brandol's half interest in Lot 73. According to Mr Cerini's affidavit, this contract was subject to a condition that there should "first be a consent pursuant to s 18 of the Aboriginal Heritage Act". On or about 24 August 2000, settlement took place and Brandol transferred its interest as tenant in common in respect of Lot 73, and Lot 77 was transferred to Mr and Mrs Sutton. This was after Mr Cerini advised Mr Sutton of the Minister's consent. I read Mr Cerini's affidavit as meaning that these transactions took place after Mr Cerini reported the fact of the receipt of the Minister's letter of 22 August 2000 and of his conversation with Mr Lowe, the content of which was recorded in Mr Lowe's letter of 24 August 2000.

51 On 24 August 2000, the Catanachs (the first and second defendants) became the registered proprietors of Lot 76.

52 Mr Tracey (the fifth defendant) entered into a building contract with the Suttons on 10 August 2001. This is subject to a condition that "the owner is required to provide proof of relevant s 18 (sic) to building prior to works commencing".

53 What can be seen from the foregoing is that it was Mr Cerini, and not any of the present defendants, who conducted dealings with the former Minister and his CEO. Since 24 August 2000, Mr Sutton has communicated with Mr Lowe to seek clarification of the effect of the consent and Mr Lowe's view of the effect of the consent was communicated to Mr Sutton direct.

54 There is nothing in this history which leads me to believe that the purchasers, Messrs Sutton and Catanachs, or the builder, Mr Tracey, intend to flout the law and, in particular, to ignore the proper interpretation of the Aboriginal Heritage Act.

55 In Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1, the New South Wales Court of Appeal had to consider whether an injunction was rightly granted on an application by the New South Wales Egg Corporation to restrain the Peeks with respect to their production and sale of eggs in contravention of the Egg Industry Act. In that case, there was evidence that one of the defendants had evinced an intention to produce and market unlicensed eggs in an extensive systematic way unless the Board agreed to a proposition which it found unacceptable. Prosecutions had already been launched which had failed to inhibit the defendants, seizure was an unwieldy remedy and was fraught with the possibility of violence, and the scale and continuity of the defendants' operations could not be effectively checked by the occasional imposition of criminal penalties. There were also difficulties with proof of the offences and evidence that the continuation of the defendants' conduct would encourage other rebel producers and undermine confidence in the ability of the Corporation to enforce a statutory scheme. The Court of Appeal therefore held that the injunction was rightly granted.

56 In discussing the principles which were applicable, however, Kirby P pointed out that courts of equity have no general duty to enforce the law, including the criminal law, whether at the behest of the Attorney General or any other person with the requisite standing. The primary rule is that the criminal law is enforced by appropriate procedures in the criminal courts - see Peek v New South Wales Egg Corporation, at 2; Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435; Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 and Meagher, Gummow & Lehane, Equity Doctrines and Remedies, 3rd ed, par 2135. Kirby P, in Peek's case, advanced six reasons why restraint should be exercised in providing injunctive relief where criminal sanctions have not been exhausted. Those reasons led Mackenzie J in Brisbane City Council v Georgeray Contracting Pty Ltd [1995] QSC 57; (1995) 79 A Crim R 265 and Harper J in Pell v National Gallery [1998] 2 VR 391 to refuse applications for an injunction. Mackenzie J noted that proof that there is a deliberate flouting of the law is fundamental in an application of this kind or that the potential consequences of the threatened action are so serious that urgent action is required to stop it. Harper J, in Pell's case, noted in particular that if, in a statutory offence, it had been intended to provide amongst the sanctions enacted the facility of injunctive relief, the legislature could readily have done so.

57 An example of a legislative provision for an injunction, as well as criminal sanction, is to be seen in this State in s 42 and s 43A of the Metropolitan Region Town Planning Scheme Act 1959.

58 There is no evidence to suggest that, when these defendants are informed that the consent given for the "Shed" development is not a consent under s 18 in relation to the work now proposed, they will flout the criminal law. Indeed, the indications to date are that at least the Suttons and Mr Tracey have been concerned to gain assurance that a s 18 consent does apply to permit the present building programme to proceed. By these reasons they will now know that a consent given by the former Minister on 22 August 2000 does not apply to provide a consent under s 18 in relation to the work which is now proposed on Lots 76 and 77.

59 If there had been some evidence of some aspect of the site which required immediate protection, then an injunction may have been granted. There was no such evidence. Consent had undoubtedly been given to Mr Cerini for "total site clearing". Although that consent does not avail the defendants, it is material that work which has been carried out in clearing the site, if carried out by Mr Cerini, would not have been an offence. That suggests that there is nothing about the land in Lots 76 and 77 which requires immediate protection.

60 For these reasons, I refuse the application for an injunction. I have reached that decision because there is no serious question to be tried. I have concluded that, on the facts, it is unlikely that the plaintiff has a real possibility of ultimate success. See Meagher, Gummow & Lehane, Equity Doctrines and Remedies, 3rd ed, par 2169 at 592. That is the reason for my decision to refuse the injunction. My decision is not a decision to refuse relief on discretionary grounds as the courts did in Attorney-General v Greenfield [1962] SR (NSW) 393 and Attorney-General v BP (Aust) Ltd [1964-5] NSWR 2055; and see Meagher, Gummow & Lehane (supra), par 2135.